Council’s decision to close Hawick Alzheimer’s service reversed following judicial review petition

About this case:

• Citation:
  [2022] CSOH 68
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Carmichael

Petitioner AB, the son and guardian of service user CD, argued that the decision of Scottish Borders Council was unlawful as no equality impact assessment was carried out prior to the closure and no users had been consulted prior to the disclosure.

The petition was heard by Lady Carmichael. Brodie KC appeared for the petitioner and R Macpherson, advocate, for the respondent.

Legitimate expectation

The Teviot Day Service which CD attended provided medium to high level care for between 12 and 14 people in and around Hawick. On 12 March 2019, a letter was sent to all service users giving notice of a meeting at which the programme manager, Michael Curran, would discuss the future of the service. In evidence, Mr Curran stated that due to significant kickback from that meeting it was agreed that no centre would close until each individual client’s needs were fully assessed.

In June 2019 an executive committee of the council made a decision accepting a recommendation that agreed to the decommissioning of individual day services when suitable alternatives were available. Various assurances were given to AB that the day centre would not close until suitable alternatives were in place for every client. However, the service stopped operating in March 2020 because of the pandemic and was never re-opened. No alternative package of care in respect of CD was ever agreed.

Counsel for the petitioner submitted that the respondent had failed to meet their obligations under the public sector equality duty. There had been a legitimate expectation that service users would be consulted before any closure decisions were taken that had not been met in this case. Further, no specific equality impact assessment had been carried out in relation to the Hawick service.

It was submitted for the respondent that an EIA relating to a proposal that “some existing day centre provision” being decommissioned was sufficient to satisfy the public sector equality duty, along with the meeting of March 2019 being in substance a consultation. Additionally, while a decision had been made to close the service, actual closure was still conditional upon suitable alternatives being available to users of the service.

Box-ticking exercise

In her decision, Lady Carmichael observed: “There was no assessment before 4 June 2019 of the impact of bringing to an end the service provided at the Teviot Day Centre. The EIA produced contains no relevant evidence relating to persons who share the characteristic either of disability or age who used that service. It records an aspirational assertion that ‘alternatives [would] be developed and provided for individuals with the aim of providing more interaction in the community’ [but] it does not contain any detail as to the needs of individuals using the service, or any evidence-based assessment that there would be suitable alternatives for the individuals in question.”

She continued: “There is nothing of any substance in the EIA which might assist the council to have due regard to the need to advance equality of opportunity, to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic, or to take steps to meet the needs of persons who share a relevant protected characteristic. The EIA itself is in the most general terms, and is the sort of ‘box-ticking’ exercise deprecated in the authorities.”

Addressing whether the March 2019 meeting could be considered a consultation, Lady Carmichael said: “The meeting was held at short notice. The notice of the meeting did not let those with an interest know, in clear terms, that the proposal was to close the service. A statement that at a meeting an individual will ‘describe the vision for transformation’ is not clear notice of a proposal to close a service.”

She concluded: “These proceedings do not relate only to the individual interest of CD as a user of the service. They bring to light unlawful decision-making, and in particular a failure to have due regard to the public sector equality duty before determining that the service should be decommissioned. Although the pandemic is a confounding factor, it is clear that there would normally be no new referrals to a service that was in the course of being decommissioned. I accept that a fresh decision-making process will inevitably be one taken in the context of circumstances that differ from those which obtained in June 2019.”

Lady Carmichael therefore reduced the decision to close the Teviot Day Service, however did not reduce the decision of 4 June 2019 insofar as it related to other day services within the council area.